In order to understand the science that enables a machine that collects
breath to measure the alcohol concentration in a person's body, it's
necessary to understand some scientific terminology, first.

Spectroscopy is a science - like biology, which is the science of living
organisms, or chemistry, which is the science of chemical compounds and
reactions - that covers a very specific topic, namely the infrared region of
the electromagnetic spectrum of light. Spectroscopy is the study of the
spectra, which is the visible range of light waves - from violet colored
waves, with the shortest wave length, to red waves, with the longest wave
length.

Infrared refers to the invisible rays that are just beyond the red end of
the visible spectrum of light. Infrared waves are longer than red light
waves, but shorter than radio waves; so, they're invisible to the eye, even
though they're still light waves. A unique property of infrared waves is
that they have a heating effect - they're even used in some cooking
appliances.

By passing a beam of infrared light over a sample of matter - in the case of
the Intoxilyzer, the matter is a breath of air from your lungs - and then
measuring how much light comes back compared to how much was sent out, the
Intoxilyzer analyzes how much energy was absorbed at each wavelength, and
thus what the concentration of alcohol in your body was.

This is because alcohols molecules absorb light consistently at the same
certain rate. The other molecules found in the breath we exhale, like water
and carbon dioxide, don't do this.

How does the Intoxilyzer know how much light is coming back and how much was
absorbed, though? When the Intoxilyzer produces a beam of infrared light, it
splits that beam into two beams and passes one through the sample containing
your breath, and the other through a "control" - usually a pure form of
solution containing no alcohol. The difference between the reports sent back
to the detector from the two beams is how the machine calculates your
alcohol concentration.

But how can differences between the amounts of light coming back to a
detector be translated into a body's alcohol concentration? This is where
source code comes in. You may have read about the litigation going on in
different state courts regarding the source codes of models of the
Intoxilyzer machine like the model 5000EN used in Minnesota. A Minnesota DUI
lawyer can explain to you if any of the current source code litigation may
apply in your case; and you can read more about the main cases in Minnesota
challenging Intoxilyzer results and source code disclosure on Mr. Kans'
website, by clicking on the Netland, Shriner and Underdahl article.

Briefly, source code is computer programming language, written by software
engineers. It's a series of commands - millions of combinations of commands,
which are very rigid, and which tell the machine how to interpret the
physical data the machine registers when you blow into it. It seems like a
great way to match science with functionality: Infrared spectroscopy
measures physical data and a machine then translates that into an alcohol
concentration that can be printed out on a piece of paper. There is one big
problem, though: The Intoxilyzer, unlike a scientist sitting at a table and
looking into a spectroscope to measure the infrared results, doesn't know
what it's doing - it just follows computer orders! So, if there is a flaw in
the commands somewhere, and that flaw affected your Intoxilyzer results, we
have no way of checking the "scientist's" work. Because we can't check the
Intoxilyzer's work, it's important to have a Minnesota DUI lawyer evaluate
your case to see if your Intoxilyzer results were affected by a potential
flaw in the machine and should be challenged.

2. Intoxilyzer Science and You

Even if the Intoxilyzer machine is working perfectly when you blow into it,
your Intoxilyzer test results STILL might not be accurate! Characteristics
like being female or diabetic can artificially raise Intoxilyzer results.

Lung capacity has a lot to do with the "result" reported by the Intoxilyzer
- because remember, it's measuring how much light comes back through a
sample of air from your lungs. But alcohol enters the lungs through tiny
sacs, which are located in the lower end of the lungs. So, the air that
comes from the top of your lungs has a lower alcohol concentration than the
air at the bottom of your lungs. The bigger your lungs are, the bigger
portion of the 1.1 liters of air required to fill the Intoxilyzer is coming
from the "top" of your lungs. The smaller your lungs are, the more you have
to dip into the bottom of your lungs to give a breath sample of 1.1 liters.

This means that women, whose lungs are typically smaller than men's lungs,
can end up with higher Intoxilyzer test results.

Also, body temperature can affect Intoxilyzer results. This means that
women, whose body temperatures can fluctuate during menstruation as much as
7.2 degrees Fahrenheit, can raise their breath test results by up to 25%!
This is the difference between blowing a 0.07 - below the legal limit - and
blowing a 0.087!

Diabetics can have in their breath a substance known as ketone bodies, which
is known as the condition ketosis. Ketone bodies are naturally occurring
molecules in all human bodies, but sometimes diabetics have excess
quantities of these molecules in their bodies, as do individuals with eating
disorders or high fat diets. Ketone bodies absorb light the same way alcohol
molecules do. This makes sense because one common ketone is acetone - like
the ingredient in nail polish. It is a flammable, colorless liquid solvent
and acts chemically like beverage alcohol. Therefore, diabetics can have
Intoxilyzer test results that read higher than their breath alcohol
concentration.

A Minnesota DUI lawyer can tell you if your Intoxilyzer test results were
affected by any of these characteristics.

3. Why the State of Minnesota Uses the Intoxilyzer in DUI Cases

According to the Bureau of Criminal Apprehension (the BCA), there were
35,000 breath tests done in the year 2006. There were only 5,000 blood and
urine tests done to determine alcohol concentration in the same year. The
turn-around time to get results from blood and urine tests back from the BCA
would increase dramatically - to over one month - if suddenly the BCA were
faced with 40,000 blood and urine alcohol tests. The time, energy and money
involved in a change like that would radically change how DUI cases are
managed in Minnesota, which could mean longer wait times and higher fines
for you.

The science behind the Intoxilyzer is sound - infrared spectroscopy is a
very accurate way to measure the absorption of light of molecules in a
sample. It's the application of this science by computer code inside a
machine that creates some discrepancies.

Although the computer code may work against you, the state enacted a couple
statutes that work in your favor when you're submitting to a breath test.

For example, did you know that statute requires that your Intoxilyzer
results be rounded off - not rounded up or down, but off? This means that if
you blow a 0.089, your result is a 0.08 - not a 0.09.

Furthermore, did you notice that when you were giving a breath sample, you
were asked to do it twice? The state is required by statute to acquire two
samples from you, and this is to your benefit because the state is also
required by statute to report as your Intoxilyzer test result the LOWER of
the two results. So, although it can feel like adding insult to injury to be
asked to blow again, remember: The state must report the lower result and
this is to protect you.

4. Protecting Your Rights When Faced with the Decision to Take the
Test

Although in Minnesota, it is a crime to refuse to take a chemical test if
you are under arrest for DUI, you have the right to speak to a Minnesota DUI
lawyer BEFORE you are required to take a chemical test.

You also have a constitutional right to have your test results - breath,
blood or urine - verified by an independent testing agency. This doesn't
mean you have the right to a second type of test at the time of your arrest,
but it does mean that you can have the sample you gave during your test
tested again! In some situations, this is an important protection of your
constitutional rights. A Minnesota DUI lawyer can tell you if your case
would benefit from independent testing.

5. The Intoxilyzer Source Code: Why is it a Big Deal?

The source code is the magic link between your breath, the science used by
the Intoxilyzer, and the State's evidence against you: Remember, source code
is how the Intoxilyzer turns infrared light particles into a number that the
prosecution uses as evidence. If there is an inherent flaw in the machine's
computer program, then the way the machine applies the science to your
breath to generate that number may not be reliable evidence and the state is
still using it against you! But, without having a copy of the source code
for computer scientists to look at and analyze, there's no real way to know
if the code is unflawed, and the results reliable.

That's why source code is a big deal to Minnesota DUI lawyers, and to you.
Why does CMI, the company that wrote the source code for the Intoxilyzer
5000EN, not want anyone to see it, though? They claim their competitors
would be able to copy it and that would violate their intellectual property
rights. Criminal defense attorneys in Washington, Arizona, Florida, Texas,
Kentucky, Georgia, Louisiana, Massachusetts, and Minnesota have argued that
not disclosing the source code violates a defendant's rights.

DUI law is one of the most complex and quickly changing areas of criminal
law. The prosecution relies heavily on the results of Intoxilyzer tests for
evidence against individuals charged with DUI. Being able to challenge your
Intoxilyzer results can take the wind out of the sails of the State's case
against you. In order to challenge your Intoxilyzer results, though, you
need a Minnesota DUI lawyer who is smarter than the machine - you need an
attorney who will tirelessly search Minnesota and other states, for new and
emerging case law and court rulings, scientific discoveries, government
publications, police training techniques, medical studies and changes in
equipment that the reveal unreliability of Intoxilyzer results like yours.

Only a Minnesota DUI lawyer can tell you if your Intoxilyzer results should
be challenged. Mr. Kans has successfully challenged Intoxilyzer results for
many of his clients - call today and find out if he can do the same for you.